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Landlord and Tenant.

Ete Eijirtecntt) IStiition.

J. M. LELY, Esq.,




Volume II.







Bt banks & BROTHERS.

[*528] * CHAPTER XIII.



1. Recovery of Rent on Covenant 628

2. Recovery of Rent on Simple Contract 533

3. Implied Contract for Rent . .' 634

We have now fully considered the landlord's peculiar
remedy to recover rent by distress ; but rent, like other debts,
can be recovered by ordinary process of law, if the landlord
prefer that to a distress. Formerly the process was distin-
guished according as it was based upon covenant or simple
contract, express or implied, but these distinctions, weakened
by the Common Law Procedure Acts, have (as technicalities)
ceased to exist since the Judicature Acts have come into
operation. It will, however, be convenient to maintain the
distinctions (as regards terminology), as the terms may still
be popularly used, and also because they are necessary to
some extent when considering who are the persons who can
sue and be sued, and how the right of action is affected by
the Statute of Limitations. Rent, then, may be recovered
b}^ proceedings based on —

(1) Some express covenant in the instrument of demise,
if under seal ;

(2) Some express agreement contained in an instrument
not under seal, or made by parol only ;

(3) An agreement which the law will imply from the con-
duct of the parties.

Sect. 1. — Recovery of Rent on the Covenant to pay it.

Early law. — Previous to the year 1845, no one could sue
on a covenant unless he was a party thereto, or, at furthest,



a legal representative or assign of a party («) ; bnt by 8 A:
9 Vict. c. 106, s. 5, it was enacted, that " under an indenture
executed after the 1st day of October, 1845, an immediate
estate or interest in any tenements or hereditaments, arid
the benefit of a condition or covenaiit respecting any
tenements or * hereditaments^ may be taken, although [*529]
the taker thereof be not named a party to the same
indenture " (?>). The law, however, remains the same as
before with regard to a deed poll (c).

Early law. — And even before the act an action might
have been (and still may be) maintained by a party to an
indenture against one who was not a party, but executed the
deed (c?) ; and where B. assigned the lease of a house to A.
by deed subject to certain covenants, and A. took possession,
it was doubted whether B.'s remedy for a breach of the cov-
enants was not by an action of covenant, although A, never
executed the deed (e).

On covenants in a void or voidable deed. — Where a deed is
void^ any covenant therein contained is void also, and no
action can be maintained for its infraction (/) ; but if the
deed be merely voidable, an action may be maintained for any
breaches of covenant which happened before the deed was
avoided (^). And we have already seen that tlie rule for
construing leases is, that a proviso that the lease sliall be
void on breach of the covenants means that the lease shall
be void at the election of the lessor (A).

We have also seen that if the right to take legal proceed-
ings on a covenant depends on the performance of a condi-
tion precedent, such condition must be shown to have been
performed (i).

(a) Green v. Home, 1 Salk. 197 ; (e) Hawkins v. Sherman, 3 C. &

Berkeley v. Hardy, 5 B. & C. 355 ; P. 459 ; but see Burnett v. Lynch, G

Ld. Southampton v. Brown, 6 B. & C. B. & C. 589, 602 ; 1 Chit. V\. 129, 133

718; Bushell v. Beavan, 1 Bing. N. (7th ed.).
C. 103, 120. (/) Smith i'. Wliite, L. R., 1 Eq.

{h) Reeves v. Watts, 7 B. & S. 523 ; 620 ; 35 L. J., Ch. 454.
L. R., 1 Q. B. 412 ; 35 L. J., Q. B. 171. (7) Ilartsliorne r. Watson, 4 Bing.

(c) Green i'. Home, supra. N.C. 178 ; Selby i-. Browne, 7 Q- B. 620;

{(1) Salter v. Kidgley, Carth. 76; Load v. Green, 15 M. & W. 216, 223.
Holt, R. 211 ; Shower, 58 ; 2 Prest. (A) See ante. Chap. V., Sect. 18.

Conv. 396. (i) Ante, Chap. VI., Sect. 7.



By or against whom action may be maintained. — An action
for breach of covenant may be maintained by or against the
parties to the contract ^ or their personal representatives,
whether the covenant be one which runs with the hind or be
merely a personal covenant.^ With regard to the position of

1 Common law remedies for rent against lessee. — («) Under a sealed
lease, either before (Nellis c. Lathrop, 22 Wend. (N. Y.) 121 ; Shuttleworth v.
Shaw, 6 Q. B. (Up. Can.) 517; Wilkes w. Steele, 14 Id. 570; Crooks r. Dickson,
15 C. P. (Up. Can.) 23; Coleman v. Reddick, 25 Id. 579; Mickie v. Lawrence,
5 Rand. (Va.) 571 ; Gillespie v. Thomas, 15 Wend. (N. Y.) 464), or after (Hunt
V. Gardner, 39 N. J. L. 530, 532; Port v. Jackson, 17 Johns. (N. Y.) 239; Stin-
son V. Magill, 8 Q. B. (Up. Can.) 271; Montgomery v. Spence, 23 Id. 39),
assigning the term lessee, is liable in corenant.

He is liable in deht, before assigning the term (Dennison I'.Lee, 6 G. & J. (Md.)
383; Stockton v. Guthrie, 5 Harr. (Del.) 123; Bigelow v. Collamore, 6 Cush.
(Mass.) 226; Kendall v. Garland, Id. 74; Hallett v. Wylie, 3 Johns. (N. Y.)
44) ; but not afterward {per Draper, C. J., in Montgomery v. Spence, supra,
and Parker, C. J., in Fletcher v. M'Farlane, 12 Mass. 43) .

Under sealed lease, lessor must declare specially. He cannot recover under
a general count (West v. Cartledge, 5 Hill (N. Y.) 488). Assumpsit will not
lie (Codman v. Jenkins, 14 Mass. 93). The only remedies are debt and
covenant {per Wilde, J., supra).

(6) If lease is not under seal assumpsit icill lie. — Hill v. Woodman, 14 Me. 38
(written lease); Thomas v. Sanford Steamship Co., 71 Id. 548; and Wilson
V. Prescott, 62 Id. 115 (oral leases) ; Watertown v. White, 13 Mass. 477
(or debt, if the facts admit) ; Jaques v. Gould, 4 Cush. (Mass.) 384 (an un-
sealed, written lease) ; Eaton v. Dugan, 21 Pick. (Mass.) 538 (a general
indebitatus count on an oral lease).

(c) Lessee has remedy over against assignee, if compelled to pay the rent, or
answer for breaches of any other covenants (running with the land). Fletcher
V. M'Farlane, 12 Mass. 43, 45 (assumpsit) ; Ashford v. Hack, 6 Q. B. (Up.
Can.) 541. He has no remedy over, however, unless he first pay the rent
(Farrington v. Kimball, 126 Mass. 313) or damage.

(c?) Assignment of reversion. — Lessor's right to sue in covenant passes to
his assignee (Van Ransselaer v. Bradley, 3 Denio (N. Y.) 135), and the latter
can sue in his own name, the transfer not being an assignment of a chose in

(e) Partial assignment of reversion ( Worthington i'. Cooke, 56 Md. 51), or
ground rent (McQuigg v. Morton, 39 Pa. St. 31), or partial eviction of tenant by
third party (Lansing v. Van Alstyne, 2 Wend. (N. Y.) 561), have been some-
times held no bar to an action of covenant.

2 Remedies for rent under the reformed procedure. — The remedy
under a lease, sealed or unsealed, is a civil action in New York, Ohio, Missouri,
Indiana, Kentucky, Wisconsin, Iowa, Minnesota, Arkansas, Kansas, Nebraska,
California, (Oregon, Nevada, North Carolina, South Carolina, Connecticut and
Colorado (Bliss on Code Pleading, sees. 4, 5) ; and the distinctions between
assumpsit, debt and covenant, have not been preserved. They are all based
on contract, and it does not matter whether the contract is verbal or in writ-
ing, sealed or unsealed. Same, sec. 8 (De Loge's Adm'r. v. Hall, 31 Mo. 473).

In Massachusetts, under the Practice Act (Ch. 167, Pub. Sts.), the action



assignees,^ we liave already seen to what extent they have
privity of contract or estate such as will enable them to
srs (/(t). And it is only necessary to note this, that when
there is a right of action against both the lessee and his
assignee, he can j)roceed to execution only against one (/).

Proper parties in case of joint covenants. — When there are
two or more persons binding or bound by the covenant it
must not be forgotten that where the words of a covenant
are clearly joint, and not several, it will be so construed,
although the interest may be several ; and so vice versa (m) ;
but where the words admit of two constructions, they will
be construed to be joint or several, according to the inter-
est (w) ; and joinder or non-joinder of parties to any pro-
ceeding must be regulated accordingly. Thus ten-
ants in common * and their representatives ought to [*530]
join in an action for a covenant to pay rent (o), and
to be so sued (o). Where the interest of the covenantees is
joint, although the covenant is in terms joint and several.

(^) Ante, Chap. VI. Sec ss. ed.) ; and see Levy i;. Sale, 37 h. T.

1—3. 709.

(/) Cro.'Jac. 423; 1 Chit. Arch. (n) ^nfe, 160; Bac. Abr. tit. Cove-

644 (Uth ed.). nant (I)) ; 1 Lush Prac. 29 (3rd ed.).

(m) Ante, 1(50; 1 Lush Prac. 22 (o) Thompson i\ Hakewill, 19 C.

(3rd ed.) ; Ros. Ev. 080 (13tl» J5., N. S. 713 ; 35 L. J., C. P. 18.

under a sealed lease is contract in nature of covenant (Wall r. Hinds, 4 Gray,
256; and Greenleaf i\ Allen, 127 Mass. 248, suits maintained aj^ainst lessees
after they had assigned), or debt, and upon an unsealed lease contract in
nature of assumpsit or of debt.

3 Common law remedies for rent against assignee. — (</) Under
sealed lease he is liable in debt (Huwiand v. Coffin, it Pick, irl ; Norton v. Vultee,
1 Hall (N. Y.) 384), or (by force of St. 32, II. 8, ch. 34), in rovennni (Shaw,
C. J., in Patten v. Deshon, 1 Gray, 325, 320 ; Pollard v. Shaeffer, 1 Dall. (Pa.)
210; McQuigg v. Morton, 39 Pa. St. 31; E.x'rs. of Dubois v. Van Ordeii,
Johns. (N. Y.) 105; Cameron v. Todd, 22 Q. B. (tip. Can.) 390; and Todd r.
Cameron, 2 E. & A. 434; Jones v. Todd, 22 Q. B. (Up. Can.) 37; Selby i-.
Robinson, 15 C. P. (Up. Can.) 370; University of Vt. v. Joslyn, 21 Vt. 62;
Armstrong i-. Wheeler, 9 Cow. (N. Y.) 88), and covenant will lie against an
assignee of part of the premises (Van Rensselaer's Ex'rs. v. Gallup, 5 Denio
(N. Y.) 454). An assignee in possession, though he have not executed, is liable
on the covenant for rent (Hurst v. Rodney, 1 Wash. C. Ct. 375), since it runs
with the land, and, if he execute, he will be liable, though he do not take
possession (Weidner r. Foster, 2 Penn. 23).

An assignee is liable in assumpsit upon an unsealed lease, and in sonu-
cases in debt.



the action follows the nature of the contract, and must be'
brought in the names of all the covenantees (p). For ex-
ample, in a lease of a colliery the two lessees covenanted
"jointly and severally in manner following," viz., that, &c. ;
then followed several covenants, after which was a covenant
that monies due should be accounted for and paid by the
lessees, their executors, &c. (not saying and each of them) :
this and the former covenants were held to be several as
well as joint (^/). But the legal niceties to be found in the
decisions are now of little importance, as by the Rules of the
Supreme Court, Order XVI., Rule 13, ample means are
provided for amendments in regard to parties.

And the same remark will apply to their representatives in
case of decease, unless, of course, the covenant be specially
made as a several covenant also (r).

Proper parties in case of death. — As to the persons who may
sue or be sued if the landlord or tenant die, the matter has
been sufficiently discussed already (s) ; and it may suffice to
notice that when the landlord has died, if the rent was due
before his death, his legal personal representative, and not his
heir or devisee, has a right to sue on a covenant to pay rent,
although such personal representative is not named in the
covenant (^) ; but if the rent became due after the landlord's
death the action must be brought by his heir or devisee (w),
that is, if the landlord was seised in fee ; for if he had only
a chattel interest, of course in all cases the rent must be re-
covered by his personal representative. And it must also be
remembered that where the breach is after the death of land-
lord or tenant, the executor or administrator may be sued
either as representative or assignee upon any covenant which
runs with the land (x).

(p) Pugh V. Stringfield, 3 C. B., (s) Ante, Chap. VII., Sect. 10.

N. S. 2 ; 27 L. J., C. P. 34. (t) Esp. N. P. 295 ; Lucy v. Lev-

(g) Duke of Northumberland v. ington, Ventr. 175; 2 Lev. 26; Dol-

Errington, 5 T. R. 524 ; Copland v. len v. Batt, 4 C. B., N. S. 760 ; 27 L.

Laporte, 3 A. & E. 517 ; 1 Selw. N. J., C. P. 281.

P. 402 (13th ed.). (m) Bac. Abr. tit. Covenant (E. 2).

(r) Thompson v. Hakewill, 19 C. (x) See ante, Chap. V., Sect. 8 ;

B., N. S. 713; 35 L. J., C. P. 18; Chap. VII., Sect. 10; and see Gor-

Foley V. Addenbrooke, 4 Q. B. 107; ton v. Gregory, 3 B. & S. 90 ; 31 L.

BuUen, 49. J., Q. B. 302.



The subject of the right of parties to sue on a covenant in
the case of assignment has been fully treated already (^).

Indorsement of writ. — The plaintiff in an action for rent
based upon a covenant may indorse his writ specially under
Order III., Rule 6, of the Rules of the Supreme Court
with the benefit of the various advantages in * regard [*531]
to speedy judgment on such a form of writ given by
Order XIV. of those Rules : if that is not done, the indorse-
ment " the plaintiff's claim is for j£ for arrears of rent "
will probably cover all claims for rent, strictly so called, ho^^■-
ever reserved or payable (z).

The statements of claim and other pleadings will be sub-
ject to the same rules as in other actions, and must, to speak
generally, set out such facts as will give the plaintiff a clear
right of action. The action Avill be tried where the i)laintiff
proposes or where the preponderance of convenience suggests,
as all local venues are abolished by the Rules of the Suprjeme
Court under the Judicature Acts (a).

Pleadings. — By the Common Law Procedure Act of 1852
(15 & 16 Vict. c. 76), Sched. B, No. 23, a short form of dec-
laration was provided for actions on covenants in a lease.
The Rules of the Supreme Court under the Judicature Act
provide a specimen statement of claim applicable to a simple
case of non-repair, to which a claim for rent may be added (/>).
Under the former practice it was unnecessary to state the
details of the deed (c), or the locality of the premises (/i),
nor any fixtures, furniture, &c., as the rent is supposed to
issue out of the realty (e), or the time when that rent became
due. But as the pleadings now are to be statements of facts,
such matters as the locality and the date Avhen rent is due
should be inserted for the defendant's information (/).

It is sufficient to "state the effect" of the covenant "as

{y) Ante, Chap. VII., Sects. 2, 3. (rf) Davis i-. Edwanls, o M. & S.

. {z) R. S. C. App. A. Part III., 380.

sect. 2. (p) Farewell v. Dickenson, B. &

(a) R. S.C. Order XXXVI., Rule 1. C. 251 ; see, too, Ward v. Smith, 11

(6) See Appendix C, No. 9. Price, 19.

(c) Sect. 55 of the Common Law (/) See, further, Walker i\ Hat-
Procedure Act, 1852. ton] 10 M. & W. 249; 2 Dowl., N. S.

263 ; Hill v. Saunders, 1 C. & P. 80.



briefly as possible, without setting out the whole or any part
thereof, unless the precise words " of the covenant " or any
part thereof are material" (^). The defendant may easily
obtain inspection of the whole lease if he choose (A).

Setting out lessor's title. — The lessor need not set out his
title (0, for the lessee cannot deny it if he set it out (A;), al-
though if the plaintiff's title be a derivative one only, he
must show how he derives his title and from whom (Q, and
in the case of an executor or administrator suing those arrears
of rent only which accrued due during the lifetime of the de-
ceased can be recovered without showing the plaintiff's
title (w).

If the statement of claim omits to state the lessor's title
where that ought to be stated, the defendant can get
[*532] it struck out or amended * under R. S. C, Order
XXVIIL, Rule 1 (;?) ; otherwise it will be sufficient,
at least after verdict (c>). In many cases — "such, for example,
as actions by husbands (or their assignees) in right of their
wives, in which there were certain special rules — it is not
now necessary to follow any technical form so long as the
facts pleaded show a right to bring the action ( jo).

Statement of derivative title of defendant. — Where the
action is against an assignee of the lessee, it has never been
necessary for the plaintiff to set out the several mesne as-
signments to the defendant, for they do not lie within his
knowledge, provided that he state the original demise, and
that all the estate and interest of the lessee came to and
vested in him (the defendant) by assignment (g). It must.

{g) R. S. C. Order XIX., Rule 24. 760, 771 ; 1 Chit. PI. .387 (7th ed.) ;

\h) R. S. C. Order XXXI., Rule 14. 2 Id. 406, 408.

(i) Aleberry v. Walby, 1 Stra. 230, (n) See Cuthbertson v. Irving, 4

231 ; 1 Wms. Saund. 233 a, n. (2). H. & N. 742 ; 6 Id. 135.

(k) Beckett v. Bradley, 7 M. & G. (o) Hartis v. Beavan, 4 Bing. 646.

994; 2 D. & L. 586; 4 Doug. 213. (/') See, for example, Fryer r.

(I) See, for example, 2 Wms. Coombs, 11 A. & E. 403; Polyblank

Saund. 751, 826; BuUcn & L. PI. v. Hawkins, 1 Doug. 329; Major v.

209 (3rd ed., 1871) ; Wild v. Baxter, Talbot, Cro. Car. 285; Wood v. Day,

11 Exch. 816; 1 H. & N. 568; Cuth- 1 Moore, 389; Noke v. Awder, Cro.

bertson v. Irving, 4 H. & N. 742 ; 6 Eliz. 37.3, 4.36.
Id. 135. (9) Bullen & L. PI. 214 (3rd ed.).

{m) Dollen v. Batt, 4 C. B., N. S.



however, be shown that tlie defendant is tlie assignee oi the
term as well as of the premises, for otherwise it might be an
assignment of another estate than the term of the lessee.
And if the defendant be assignee of part only of the de-
mised premises he should be charged accordingly, and not
as assignee of the whole (/*).

Defences of tenant. — - AVith regard to any defence which
the tenant may set up,i it must be borne in mind that he can-
(r) Grattan r. AVall, 2 I. R., Com. L. 484, Exch.

1 Defences in suits for rent. — («) Nature and degree. — Defences are, in
some respects, more liberally allowed under the " Reformed Procedure" (of
the code states) than by the common law practice (of the other states).

They are divisible (under both systems) into total defences and i)arti!il
defences. The same kind of facts may, under different circumstances, be
either total or partial.

Eviction. — For example, total eviction is always a complete defence,
whether pleaded in bar at common law (Fitchburg Cotton Man. Co. r. Melven,
15 Mass. 208), or set up as such in answer (under the code practice) to all
rent subseyuentli/ accruing. So, likewise, is partial eviction {by the weight of
authority) if by the lessor ; but partial eviction by a third jxirti/ (under title
paramount) is only a defence pro tanto. See ante, ch. 1, sec. 0, "Eviction of

Eviction is no defence to a suit for prior accrued rent. Pepper v. liowley,
73 111. 262 ; Fillebrown v. Hoar, 124 Mass. 580 ; Kessler v. McConacliy, 1 Rawle
(Pa.) 435; Tiley v. Moers, 43 Pa. St. 404; Moffat v. Strong, 9 Bosw. (N. Y.)
57 ; Blair v. Claxton, 18 N. Y. 529.

It does not (of itself) terminate a lease (Leishman v. White, 1 Allen
(Mass.) 489), but simply suspends the rent. If lessor restore possession to
lessee, and the lessee accept it, the lessee will become liable for the rent sub-
sequently accruing (^per Woodward, J., in Tiley v. l>Ioers, 43 Pa. St. 404,

Constructive eviction is as effectual as actual eviction. It has been held
there can be no constructive eviction without an abandonment. Boreel v.
Lawton, 90 N. Y. 293, 297 ; and see per Andrews, Ch. J. Doubtless there may
be a constructive eviction from part without an abandonment of the wliole ;
and there need not be an abandonment if there is a new attornment, under
compulsion, to the rightful owner. Eviction is a breach of the covenant of
quiet enjoyment. The covenant of quiet enjoyment and the covenant to pay
rent are mutual, but not simultaneous, covenants. Quiet enjoyment is a con-
dition precedent to the covenant to pay rent. See note upon " Eviction of
Lessee " cited supra.

Failure to deliver jwssession is held a breach of this covenant in America
if a third party is in rightful possession at the commencement of the tenancy
(Ludden v. Stern, 20 111. App. 88), otlierwise the American authorities are
divided upon the question whether it is the duty of lessor to put the lessee in
possession of the demised premises.

Mere trespasses. — It is usually held at common law that mere trospasse*
are not breaches of the covenant of quiet enjoyment, and constitute no de-
fence (even in part) to a suit for rent. Bartlett v. Farrington, 120 Mass. 284 ;



not deny that his landlord had a good title at the time of the de-
mise (.s), but he may show that his landlord's title has ceased

(.s) See Parker v. Manning, 7 T. Ashby, 7 H. & N. 600 ; Blake v. Fos-
R. 587 ; Langford v. Selmes, 3 K. & ter, 8 T. R. 487 ; Wilkins v. Wingate,
J. 220 ; 2 Jur., N. S. 859 ; Duke v. 6 T. R. 62.

Bennet v. Bittle, 4 Rawle (Pa.) 339 (entry of lessor without expelling lessee) ;
Elliott V. Aiken, 45 N. H. 30 ; Boston & Worcester R. R. Co. v. Ripley, 13 Allen
(Mass.) 421; Waterman on Set-ott", Recoupment, and Counter-claim (2d ed.),
sec. 575.

In Illinois it is held that mere trespasses, though not amounting to an
eviction, may be set up as a defence pro tanto. Lynch v. Baldwin, 09 111. 210;
Wade V. Halligan, 16 Id. 507, 511 {per Scates, C. J.) ; Streeter v. Streeter, 43
111. 155, 161. Generally claims in contracts in that state, arising out of same
transactions, may be set off against torts (Stow v. Yarwood, 14 111. 424;

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